Lesbian Parent Denied Adoption Requested as Extra Caution

, New York Law Journal

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Adoption is "neither necessary nor available" under New York law to a lesbian seeking to cement her parental status in jurisdictions that do not recognize same-sex marriage, a judge has ruled.

The decision by Brooklyn Surrogate Margarita Lopez Torres (See Profile) focuses on the uncontested petition that a non-biological mother filed for the adoption of her infant son, even though her name appears on the boy's birth certificate.

The Jan. 6 ruling is a strong endorsement of marriage equality but is nevertheless contrary to the advice that many attorneys have given their gay clients.

Michele Kahn, of Kahn & Goldberg, who was not involved in the underlying proceedings, called the ruling "a harmful decision—even though the principle it stands for is good."

Kahn, chair of the New York State Bar Association's Committee on LGBT People and the Law, credited the ruling for "basically saying same sex couples are the same as everyone else."

But she said that she and other practitioners advise "second parent adoptions" like the one in the petition before Lopez Torres.

"It is certainly distasteful to many of us to have to do the adoption," she said in an interview. "But nonetheless, we live in the real world and travel to states that don't recognize same sex marriage but may recognize a New York order of adoption. It behooves us to protect our families that way and recommend" adoption.

Mariette Geldenhuys of Ithaca, who has practiced in LGBT family law for the past 25 years, noted that adoption "is the one legal remedy for creating and confirming a parent-child relationship that has withstood challenge" in states that do not recognize same-sex marriage and the rights flowing from marriage.

"Attorneys representing LGBT clients are deeply concerned about this decision," said Geldenhuys, who is also a member of the state bar's Committee on LGBT People and the Law.

In Matter of the Adoption of a Child Whose Name is Seb C-M, X 2013—21, Lopez Torres acknowledged that the "uncertainty occasioned by the tectonic shifts occurring in the geography of our culture's definition of 'family.'"

Still, she later said, "Were this court to entertain the instant petition, such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage."

A.C. and her wife, M.M. are New York residents, who married in Connecticut in April 2011.

Prior to New York's July 2011 enactment of the Marriage Equality Act, Lopez Torres said the pair's marriage was fully recognized in New York pursuant to Martinez v County of Monroe, 50 A.D. 3d 189.

The 2008 Appellate Division, Fourth Department, ruling held out-of-state same-sex marriages had to be recognized in New York.

M.M. gave birth to the couple's son, Sebastian, last year.

Both M.M. and A.C.'s name appeared on the birth certificate of the boy, who has the surnames of both parents.

Still, A.C. filed the uncontested petition for adoption, looking to protect her rights if confronted, for example, with an emergency medical situation regarding Sebastian while they are outside of New York.

Lopez Torres said the action appeared to have been filed "out of an abundance of caution," looking to buttress A.C.'s existing parental relationship in the event of relocation in jurisdictions that were "less hospitable" to same sex couples' rights.

In proceedings leading up to the decision, the judge told the couple's attorney, Michael DiMauro of Staten Island, that she had previously handled same-sex adoption proceedings where just one spouse's name appeared on the birth certificate.

But according to DiMauro, the judge said this was the first case she encountered where both parents' names already appeared on the birth certificate.

In her decision, Lopez Torres observed that, pursuant to Domestic Relations Law §110, an adopter "acquires the rights and incurs the responsibilities of a parent."

She also pointed to case law saying adoption is not available "to reaffirm, an already existing parent/child relationship."

Furthermore, A.C. had made a prima facie showing of her parental status by appearing on Sebastian's birth certificate.

Before the Martinez court and the Marriage Equality Act, Lopez-Torres said she would have authorized adoption "without any hesitation."

"However, today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son," she said.

In a footnote, she added that any place that did not recognize New York's marriage laws was "equally likely to deny full faith and credit to decrees of adoption issued to same-sex couples by a New York Surrogate's Court."

If A.C. wanted to make her parental status bulletproof in places "hostile to marriage equality," Lopez Torres said the appropriate approach would be challenging the rights denial in that jurisdiction.

It has been about six months since a U.S. Supreme Court majority in United States v. Windsor, 12-307 struck down a provision of the Defense of Marriage Act defining marriage for federal purposes as between a man and a woman.

Since then, Lopez Torres said "a host of state and federal courts in disparate parts of the nation have struck down, on constitutional grounds, state laws and policies that limit the rights of same-sex couples to civil marriage."

In an interview, DiMauro emphasized his views were not necessarily that of his clients or the gay and lesbian community at large. Still, he said the ruling was a "great advancement for the gay and lesbian community" because it "eliminated the need for any adoption proceedings" when both parents appeared on the birth certificate and were legally married.

However, DiMauro said it left his clients with an "uneasy feeling" because there were still jurisdictions "hostile" to gay marriage and same-sex adoptions.

DiMauro said he did not know if he could appeal the ruling, seeing no misapprehension of law or fact.

"It's meant to be a victory," DiMauro said of the ruling. "Because there's still tremendous discrimination against the gay and lesbian community, it's a bittersweet victory. Other jurisdictions have to recognize the decision for the victory it should be."

What's being said

  • not available

    (**...presumed the legal parent of a child **BORN** to a lawful wife)..

  • not available

    Had the Surrogate rule differently, it would imply that birth certificates are not sufficient as evidence of parentage. It seems extreme, but such a ruling could mean that all married fathers (under common law presumed the legal parent of a child for to a wife) would need to petition the court to affirm their parental status through adoption proceedings! The Surrogate was wise to prevent such a ludicrous outcome.

  • not available

    Interesting article. Completely unintelligible headline.

  • not available

    While in some sense logical, this decision is mistaken, in my view, because at present about 30 states do not recognize same-sex marriages and would not automatically recognize the parental status of the petitioner based solely on their same-sex marriage. However, it is well established that adoption decrees, as judicial records, are owed full faith and credit in other states, although there is some disagreement about how that recognition would be enforced (through state court action vs. federal court action). Granting an adoption on this kind of petition harms nobody and will likely provide important protection for travel through non-recognition jurisdictions.

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